South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Beverly A. Knaup, D&T of N. Charleston, Inc., d/b/a Oakridge Caf vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Beverly A. Knaup, D&T of N. Charleston, Inc., d/b/a Oakridge Caf

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0675-CC

APPEARANCES:
For the Petitioner: Pro Se

For the Respondent: No appearance

For the Protestant: Pro Se
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-1-55, et seq. (Supp. 1994) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1994) for a contested case hearing. The Petitioner, Beverly A. Knaup seeks an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization for the Oakridge Cafe. A hearing was held on December 7, 1995, at the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The permit requested by the Petitioner is granted.



FINDINGS OF FACT


1. The Petitioner seeks an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization for D&T of North Charleston d/b/a the Oakridge Cafe at 5060 Dorchester Road, North Charleston, South Carolina. The Petitioned incorporated D&T of North Charleston as a nonprofit organization under South Carolina law on December 5, 1994.



2. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Protestants, and the South Carolina Department of Revenue.

3. The qualifications set forth in S. C. Code Ann. § 61-9-320 and S. C. Ann § 61-5-50 (1994) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner is of sufficient moral character to receive the permit and license.

5. The proposed location is not close to any church, school or playground.

6. The Protestant objects to the Petitioner receiving a permit and license because there are already 48 establishments that sell alcoholic beverages within 4.6 miles of the location. The Protestant also objects to the proposed location because establishments that sell alcoholic beverages interfere with the peaceful environment of the neighborhood and create the potential of drunk drivers upon the streets.

7. This location has been permitted or licensed to sell beer, wine or alcohol for approximately 10 years. There is no evidence of any change in circumstances reflecting that this location is less suitable than it has been in the past.

8. The proposed location is suitable for an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization.



CONCLUSIONS OF LAW


Based upon the above Findings of Fact, I conclude as a matter of law the following:

1. S.C. Code Ann. § 1-23-600 (Supp. 1994) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-1-55 (Supp. 1994) grants to the Administrative Law Judge Division the powers, duties and responsibilities as hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-9-320 (Supp. 1994) sets forth the requirements for the issuance of an on-premise beer and wine permit.

4. S.C. Code Ann. § 61-5-50 (Supp. 1994) sets forth the requirements for the issuance of a club sale and consumption license as a nonprofit organization. Section 61-5-50 specifically provides that principals of the organization must possess good moral character. Furthermore, under S.C. Code Ann. 61-5-20 (3) (Supp. 1994) the non-profit organization is not open to the general public and only the members and guests of the club may consume alcoholic beverages upon the premises.

5. As trier of fact, an Administrative Law Judge is authorized to determine the fitness or suitability of the proposed location of an applicant for a permit or license to sell alcohol, beer or wine using broad but not unbridled discretion. Byers v. S. C. ABC Commission, 316 S.E. 2d 705 (S.C. App. 1984).

6. The determination of suitability of a location is not necessarily a function of geography. It involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 2d 335 (1985).

7. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that protestant objects to the issuance of the permits is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973).

9. A permit should be granted to a location that has been recently permitted absent some showing that the location is now less suitable than in the past. Taylor v. Lewis, supra.

10. I conclude that the Petitioner meets all the statutory requirements for holding a beer and wine permit and a club sale and consumption license as a nonprofit organization at the proposed location.



ORDER


Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application of Beverly A. Knaup for an on-premise beer and wine permit and sale and consumption license as a nonprofit organization be granted upon the Petitioner's payment of the required fee and cost to the South Carolina Department of Revenue and Taxation.

AND IT IS SO ORDERED.



______________________________________

Judge Ralph King Anderson, III

Administrative Law Judge

January 5, 1996

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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